Harvard Law School professor emeritus Alan Dershowitz says that special counsel Jack Smith, who recently indicted former President Donald Trump, could be indicted based on claims he has laid out against the former president.
“Under the terms of this indictment, Jack Smith can be indicted,” Mr. Dershowitz said in a recent interview with Fox News. “The Statute says the following: ‘If two or more persons conspire to injure and deny somebody the free exercise or enjoyment of any right or privilege secured to him by the Constitution.’
“What if a court ultimately rules that Donald Trump had a right under the First Amendment to make his Jan. 6 speech and to do what he did? Then, Jack Smith will have conspired to deny him (Trump) of that right. That’s how serious this is.”
“And Jack Smith also in his indictment deliberately, wilfully, and maliciously leaves out the words that President Trump spoke on Jan. 6 in his terrible speech, which I disagree with. But what he said was—I (Trump) want you to assemble peacefully and patriotically. Jack can’t leave that out. That is a lie—an omission lie.”
In his indictment, special counsel Mr. Smith focuses on Mr. Trump’s use of the term “fight like hell” during the “Stop the Steal” rally. Mr. Smith omitted a key statement Mr. Trump made at the time, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
During Mr. Trump’s second impeachment trial, House Democrats had also adopted a similar tactic—omitting the former president’s call for a peaceful rally.
Under the Brady rule, prosecutors in a criminal trial are obliged to provide all evidence to the defendant’s legal team, including information that could be favorable to the accused.
A ‘Banana Republic’
Mr. Dershowitz also expressed worries about the United States turning into a corrupt nation.“That’s what happens when people in power are afraid of the democratic process. What they do is they seek the indictment and prosecution of the people who are running against them.”
Mr. Dershowitz pointed out that he has a “constitutional right” to vote against Mr. Trump. He has voted against Mr. Trump twice and intends to do so for the third time.
“But I want to have that right to vote against him and not have that right taken away from me by prosecutors and by the president who wants to see him imprisoned. That’s just not the American way.”
When the host asked whether the United States has become a banana republic, Mr. Dershowitz replied that “we’re not there yet” but that the Trump indictment “is a step in that direction.”
“And also placing the case in the District of Columbia, which is 95 percent anti-Trump, putting it in front of a judge with a history of anti-Trump,” he said, was adding to his concerns.
The judge who will preside over the indictment case, U.S. District Judge Tanya Chutkan, is a former assistant public defender who was nominated by President Barack Obama.
In November 2021, she rejected the former president’s attempt to block the Jan. 6 House select committee from accessing hundreds of documents from the White House despite Mr. Trump’s claim of executive privilege.
Judge Chutkan has so far sentenced at least 38 people who were convicted of crimes related to the Jan. 6 breach.
“If the government thinks they have a strong case, they ought to join the defense and agree to move it to West Virginia or Virginia and put it in front of another judge who doesn’t have a long history of anti-Trump attitudes. So, I don’t believe he can get a fair trial in the District of Columbia,” Mr. Dershowitz said.
